Important Principles of Publishing Law

Guest Post

Although the basic principles of publishing law generally remain unchanged, the law that governs the publication of books, magazines, newspapers and – in particular - their digital equivalents is constantly evolving. This constant evolution is necessary now more than ever, due to the impact the internet has had on how material is distributed, and the increasing importance of digital copyright law. In today’s digital age, what is legal in one country may not be permitted in another, and this patchwork of very different sets of laws represents a real problem for authors and publishers throughout the world.

Unsurprisingly, the countries of the world have attempted to regulate this by means of international treaties. There is now the International Court of Justice at The Hague (mainly referred to for war crimes), and the European Court of Human Rights in Strasbourg. However, these only operate in certain jurisdictions and their judgements are usually regional rather than global. There is no truly global International Court, and although many feel that the internet requires something similar, it appears to be a long way away from actually happening.

Copyright Law

Despite the aforementioned problems with the application of international publishing laws, copyright law is relatively well enforced globally. This is due to one of the world’s longest-running treaties, the Berne Copyright Convention of 1886, now acceded to by over 160 countries. The Berne Copyright Convention obliges members to apply reciprocal ‘national treatment’ in their own courts to works produced by members of other member states. The TRIPS Treaty also requires member states to enforce copyright effectively.

Copyright is a form of intellectual property that exists from the moment a work of creative, intellectual or artistic nature is created in a fixed, tangible form of expression (Ideas and information are not covered by copyright law – only the form and manner in which they are expressed is.). Copyright grants the creator of an original work exclusive rights to its use and distribution – usually for a limited time. In the case of works made for hire, the employer - not the creator of the work - is considered the author. Updated in 1988 and unchanged ever since, the Copyright, Designs and Patents Act 1988 remains one of the key principles of publishing law.

Assignments & Licenses

An assignment of copyright is a transfer of ownership of the copyright. By assigning your copyright to another person or organisation, you are effectively providing them with the legal right to exploit the material however they wish. You will no longer own it; the recipient of the assignment will have full rights to the material. And if you publish your work after you have assigned it to another party, you are committing copyright infringement – even though you were the original author of the work.

If you grant someone a copyright license, you retain ownership of your copyright but give the other party permission to use some or all of your copyright rights. You may grant a publisher the rights to publish your work in print and/or as an ebook, but retain the right to create an audio version of your work. Any type of right can be retained or granted as required, which can allow the author of the work to profit by producing and distributing the work in other formats, or even expanding upon it.

Written Contracts

Almost all publishing agreements should be in writing. Whilst English law does allow for unwritten contracts, those contracts which involve assignment of copyright or a licence of copyright within the meaning of the legislation must be in writing. Even where a publishing agreement does not involve an assignment or license, getting the terms of the contract written down is always a good idea. A written agreement provides evidence that the contract actually exists, helps ensure that all parties are ‘on the same page’, reduces the risk of a legal dispute occurring and also helps with the resolution of a dispute should one arise.

Payments and Royalties

A publishing agreement will usually state methods of payments to the author, which are typically either by the payment of an agreed fee or by the payment of royalties. With royalty payments there may also be an advance, which will need to be earned-out before any royalty payments commence. Publishing contracts that are based on assignments of copyright usually include up-front, fee-based payments, while payments made under licences of copyright are often royalty-based. In practice, however, many publishing contracts combine assignments and royalties or licences and fees.

Infringement of Legal Rights

There are multiple ways in which an author’s legal rights can be infringed when a piece of work is published. For example, a work could infringe copyright, moral rights, database rights, trade mark rights, design rights, rights in passing off, or any other intellectual property rights. Because of this, it is vital that publishing companies fully research the work they are given to publish, and authors are fully aware of the rights they hold in their work.

ARK Group is a leading B2B publishing and events company providing leading products for the legal and information management markets. ARK Group’s information products help professionals and organisations work more intelligently by delivering reliable information and techniques that can be used to benchmark, develop and improve fundamental business processes and procedures.

What Will Happen to EU Citizens in the UK in the Event of Brexit…?

Guest Post

The promised EU referendum, awarded the unfortunate moniker of ‘Brexit’ by the British press, is drawing nearer. Currently, there isn’t a confirmed date for the vote, but we do know that it will not be on 5^th May 2016, the day when the public will vote on the devolution of the Northern Irish, Scottish and Welsh Parliaments.

David Cameron promised in the run up to the 2015 election that the referendum will take place before the end of 2017, and a recent BBC News article speculated about the pros and cons of potential dates between now and then.

It’s certain that should the public vote in favour of leaving the EU there will be major changes. The debate rages on about whether or not these changes will have a positive or negative impact on the state of the nation.

However, one unavoidable point that has not been widely discussed in the media is that EU nationals who have made their home in the UK will find their circumstances change overnight if Britain decides to abandon the union.

Freedom of movement is one of the founding principles of the European Union and plenty of citizens from member states have taken full advantage of this perk, moving across the continent and settling outside of their sovereign nation.

It is estimated that there are currently within the region of 2 million EU nationals living and working in the UK who would face an uncertain future is the so-called Brexit came to be.
UK nationals who’ve made their home in the EU may also find themselves in a similar situation, suddenly being classified as illegal immigrants if the British public decides it’s time to leave the EU behind.

If the Brexit does happen, then hundreds of thousands of EU nations who have been living in the UK for years may find themselves very suddenly in need of a visa, or a plane ticket home.

At Carter Law, specialist Immigration Solicitors based in Manchester, our team have been keeping a close eye on the situation. Without a set date for the referendum, the serious campaigning hasn’t even started, but we’re keen to be in a position to help as many people as possible should the UK leave the union.

Hasty changes to the UK Immigration Law to accommodate for the outcome of the UK leaving could further complicate matters. Questions have been raised about whether citizens of more affluent states, such as Germany or France may be given preferential treatment over those from poorer EU nations, Bulgaria for example.

Many EU citizens who call UK home are anticipating something which, in their eyes is a worst case scenario, and asking “will I need a visa?”. Unfortunately, there simply isn’t enough information available to immigration solicitors currently, so we must wait patiently to see what happens.

Hopefully, as a date is confirmed and the time to vote draws nearer, there will be some consideration given to those who would be directly affected by the Brexit.

An Easy Guide to Marriage and Relationship Breakdown

Guest Post
So you have decided to separate. What are the essential legal things you need to know? The following has been provided by Selachii LLP and is intended to be a brief guide.

Divorce: The Basics

If you are married then you may wish to take divorce proceedings, although there are other options, such as entering into a separation agreement with your spouse. 

There is only one ground for divorce: that the marriage has irretrievably broken down. However, you must prove irretrievable breakdown by showing one of five things:

1. That your spouse has committed adultery (usually proved by them admitting it).

2. That your spouse has behaved unreasonably.

3. That your spouse has deserted you for a period of two years.

4. That you and your spouse have been separated for two years and your spouse consents to the divorce.

5. That you and your spouse have been separated for five years.

Briefly, the procedure for a divorce is that one party will file a divorce petition with the court. The court will then send a copy to the other party, along with an acknowledgement form for them to complete and return to the court stating whether or not they intend to defend the divorce (defended divorces are extremely rare). If they do not defend, then the petitioner can apply for the divorce to proceed. If there are no problems, the court will fix a date for the pronouncement of the decree nisi. Six weeks after the decree nisi the petitioner can apply for the decree absolute. Again, if there are no problems, the court will send a copy of the decree absolute to each party. It is normally possible for the divorce to go through without anyone having to attend the court.

Sorting out arrangements for children

When a couple separate they will need to sort out arrangements as to with whom any dependent children will live, and what contact the children will have with the other parent. There are no hard and fast rules as to arrangements for children – the important thing is what is best for those particular children. They may, for example, spend most of their time with one parent, or they may share their time with both parents.

If arrangements cannot be agreed, then an application can be made to the court for the court to sort out the arrangements by making a child arrangements order. 

Child maintenance

When parents separate they should if possible try to sort out child maintenance arrangements between themselves by agreement. However, if they cannot reach an agreement then an application can be made to the Child Maintenance Service.

The Child Maintenance Service will calculate how much the non-resident parent should pay, by reference to a formula. It can then collect the maintenance from that parent and pay it to the parent with care of the child. The Service reviews the payment amount every year.

Generally, child maintenance payable through the Child Maintenance Service will last until the child reaches the age of 16, or while the child is aged under 20 and is in full-time secondary education. However, child maintenance can be arranged through the courts for older children in tertiary education.

Sorting out finances on divorce

When a married couple separate they will need to sort out a financial/property settlement, including what is to happen to the former matrimonial home, the division of any other money or property, whether one party should pay maintenance to the other and what should happen to any pensions.

If these things cannot be sorted out by agreement, either party may apply to the court for the court to sort them out. The court will then require both parties to disclose full details of their means, so that it can decide what type of orders would be appropriate.

Alternatives to court

It is not always necessary to go to court to resolve a family law dispute. The matter can be resolved by agreement, by a variety of means, including:

Negotiation between the parties – Usually with the assistance of solicitors.

Mediation – Whereby a trained mediator will help the parties to reach an agreed settlement.

Collaborative law – Whereby each party appoints a collaboratively trained lawyer and then the parties and their lawyers meet face to face to try to agree a settlement.

Note that if an agreement is reached sorting out finances and property following a divorce, it will be necessary to request the court to incorporate the agreement into a court order.

Domestic violence

No one should have to put up with domestic violence, which includes not just physical violence but also other forms of abuse, such as controlling behaviour.

If you are a victim of domestic violence, then you can apply to a court for an injunction order. The order can take one or both of two forms:

A non-molestation order – preventing the abuser from using or threatening violence against you. A breach of a non-molestation order is a criminal offence.

An occupation order – requiring the abuser to leave the house, or preventing them from returning there. Occupation orders usually have a ‘power of arrest’ attached to them, which means that the police may arrest anyone breaching the order.

Issues for unmarried couples

When they separate, the law treats unmarried couples differently from married couples. There are two things in particular to note:

Firstly, if he was not married to the mother a father of a child does not automatically acquire parental responsibility for the child. He can, however, acquire it in various ways, for example if his name is on the child’s birth certificate, if the mother agrees to him having it or if a court grants it to him.

Secondly, the rules relating to sorting out finances on divorce do not apply to unmarried couples. One party cannot claim maintenance for themselves from the other, and any property will generally remain with the person who owns it. It is possible in certain circumstances for one party to make a claim against the other’s property, but the rules relating to such claims are complex, and legal advice should definitely be sought before making a claim.

Glossary of common legal terms

Affidavit – A written statement, sworn by the writer to be true.

Child arrangements order - An order regulating arrangements relating to with whom a child is to live, spend time or otherwise have contact, and/or when a child is to live, spend time or otherwise have contact with any person.

Clean break – A financial/property order on divorce that ends all financial ties between the parties.

Consent order – An order made with the agreement of both parties. Usually refers to an order setting out an agreed financial/property settlement on divorce.

Contact – Refers to contact between a child and the parent with whom the child does not usually live. Includes visits, overnight stays and other types of contact such as via telephone, letters, texts and internet.

Decree absolute – The order finalising a divorce.

Decree Nisi – The order stating that the parties are entitled to a divorce.

MIAM – Abbreviation for ‘Mediation Information and Assessment Meeting’, used to see whether mediation could be used to resolve a dispute, rather than going to court. Anyone wishing to make an application to the court is required to attend a MIAM.

Parental responsibility – Defined as ‘all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property’.

Pension attachment – An order following divorce, stating that one party will receive part of the other party’s pension, when the other party receives it.

Pension sharing – An order following divorce, transferring a percentage of one party’s pension to a pension in the name of the other party.

Periodical payments - Another term for maintenance.

Petitioner – The party who issues the divorce proceedings.

Property adjustment order – An order following divorce, adjusting the ownership of matrimonial property.

Respondent – Refers to the party who did not issue the court proceedings.

Separation agreement – A document setting out an agreement between spouses, relating to finances and/or arrangements for their children. Used where they have decided to separate but do not yet intend to commence divorce proceedings.

Without prejudice – Words typically included in an offer of settlement to help ensure that the court cannot be informed of the details of the offer.

Useful organisations and websites

Citizens Advice – Provide advice online, by phone and in person.

Cafcass – The Children and Family Court Advisory and Support Service. Cafcass looks after the interests of children involved in family proceedings, including providing reports to help the courts decide what orders to make.

Child Maintenance Options – Provides information and support to help separated parents make decisions about their child maintenance arrangements.

Child Maintenance Service – Sorts out child maintenance when the parents can’t agree. Part of the GOV.UK website (see below).

Family Mediation Council – Provides information on mediation and details of local mediators.

Gingerbread – Charity providing expert advice and support for single parents.

GOV.UK – Government services and information website. Includes many useful resources related to family breakdown including, in particular, a sectionon marriage, civil partnership and divorce.

Relate – Provides counselling, support and information for all relationships.

Women’s Aid – Helps women and children who suffer domestic abuse.

Woman jailed for excessive ‘vocalising’ during sex

From the Metro 01/06/15:

Gemma Wale [or is that wail? ;-) ] 23, was ordered to serve two weeks behind bars for breaching an ASBO.

A court heard how she ‘screamed and shouted’ at a level of noise which had offended neighbours during a ten minute romp at her house in Small Heath, Birmingham.

The court heard Birmingham City Council took legal action after neighbour Ghazala Bibi, 40, complained about loud sex noises coming from her home.

Mrs Bibi said in evidence: ‘Gemma started screaming and shouting whilst having sex, which woke us up. This lasted ten minutes.’

In a written judgement Judge Kelly said an anti-social behaviour order had barred Wale from making ‘loud sex noises’ at her home in Hob Moor Lane [which she had breached during a session of raucous hanky panky in the early hours of 29 January].

Here, according to the Metro, is the love shack where Gemma Wale wailed like a trooper in breach of her ASBO. Looks romantic, doesn’t it?

I suppose It would have been pointless for a police officer to have attended the scene to ask her to come quietly.

  Ahem!

Sorry folks: I can’t take the credit for that one. It’s from an episode of classic nineties comedy, The Thin Blue Line, in which the police receive a complaint from a neighbour about loud sex noises made by the ‘noisy nympho at number nine’.

The parallels to this story are uncanny. 

In that episode, resident joker D.C. Kray -- probably the best character in the show -- helpfully suggested that his uniformed colleague should “put the handcuffs on her ankles – that’d solve the whole thing”.

Worth considering, perhaps. I’m not sure how it would square with PACE, though.